174 P.2d 500 | Colo. | 1946
Lead Opinion
delivered the opinion of the court.
Plaintiff in error, hereinafter referred to as defendant, was convicted of the larceny of a yearling calf, owner unknown, and sentenced to the state penitentiary for a term of three to six years. To review that judgment he prosecutes this writ and assigns as error, inter alia, the giving of instruction No. 9. Since we conclude that this assignment is good and requires reversal we ignore the others as either wholly unfounded or referring to minor errors not likely to arise on another trial.
This prosecution was instituted under the following statute: “In the prosecution of any person charged with the larceny of any neat cattle the ownership of which is alleged to be unknown, proof of the failure, neglect or refusal of any person or persons who has butchered any neat animal as herein provided to produce a hide or, in lieu thereof, to give a true explanation as to the disposition made of the hide and to inform said officer or officers making demand where such hide is at the time of request for exhibition, shall be prima facie evidence of the guilt of such person or persons of the larceny of neat animal, and in all prosecutions for the larceny of neat cattle, the owner being unknown, it shall not be necessary in order to convict the defendant or defendants for the people to prove motive, intent or purpose on the part of the accused or to identify the meat with the said animal or animals alleged to be stolen or to prove that any specific animal of any owner, unknown ór otherwise, has been lost.” ’35 C.S.A., c. 160, §39.
The jurors were told “that the burden is upon the people to prove every material allegation of the information to their satisfaction beyond a reasonable doubt.” That “the defendant is' presumed to be innocent until proven guilty beyond a reasonable doubt.” That “the information is a mere accusation and not in itself any evidence of guilt.”
1. It will first be observed that if instruction No. 9 be taken at its face the people in this case were required to prove only that defendant had butchered an animal and had not produced the hide or given a true explanation of its disposition, or informed the officers where it could be found. Thus the presumption of innocence and the requirement for proof, of the corpus delicti and criminal intent were junked.
2. It will next be observed that instruction No. 9, so construed, was in direct conflict with other instructions given the jury.
3. Mindful of the general rule that courts of review will not decide constitutional questions unless indispensable to a disposition of the case, we conclude such decision is not here indispensable, hence assume constitutionality and consider the proper construction of the statute and the applicability of instruction No. 9 thereto.
4. It should be observed that the portion of the act stating those facts the proof of which shall constitute prima facie evidence of guilt, is divided from that portion which dispenses with proof of motive, intent or
For the fatal error above pointed out the judgment is reversed and the cause remanded for further proceeding in harmony herewith.
Mr. Justice Jackson and Mr. Justice Stone dissent.
Dissenting Opinion
dissenting.
The people introduced evidence that defendant was seen to drop in the river sacks which were later retrieved and found to contain the head, feet and pieces of hide of a yearling which fitted together to make a whole hide except for a small piece which had been cut out behind the right shoulder; that the right ear was cropped, but there was no brand on the hide; that de
The evidence was ample to justify the conviction. Defendant’s assignment most strenuously urged is that considered in the majority opinion concerning the trial court’s instruction in the words of the latter clause of section 39, chapter 160, C.S.A. 1935. At the trial defendant objected to that instruction because “There is a caution in advocacy and it argues the question of the identity of meat with an animal that has been specially missed, lost or an indefinite animal, which question is not involved in this case in any particular; for the reason that it emphasizes the identity of meat with an animal stolen, which is involved in this case and is misleading and confusing for that reason.” The objections considered in the majority opinion were not raised at the trial. This prosecution was patently instituted under section 33, chapter 160, C.S.A. 1935, rather than under section 39, as stated in the majority opinion. The condemned instruction, quoting the words of the statute, makes no mention of production or explanation of disposition of the hide, and in no way destroys the presumption of innocence or proper requirements of proof or is in conflict with other instructions. The majority opinion is predicated upon the conclusion that the clause of the statute quoted in the instruction is dependent upon the prior clause of the statute relative to production of the hide which was not included in the instruction. I believe this conclusion unfounded. The first clause of the statute says in substance that in prosecution for larceny of neat cattle, the owner being unknown, proof of failure to produce the hide or explain its disposition shall be prima facie evidence of guilt; the second clause of the statute (which was quoted in the
Considering the provisions of this instruction and the statute on which it is based, first, as to motive: “It is not incumbent on the state to prove either the presence or the absence of motive.” 22 C.J.S., p. 883, §568. The provision in the statute, that it is not necessary for the people to prove motive, was merely a declaration of existing law. “It is not an essential element of crime or
Turning, now, to the other provisions of the statute and instruction, that it shall not be necessary, where the owner is unknown, for the people to identify the meat or prove loss of any specific animal. This is apparently a cautious declaration by the legislature of already existing law; it declares that when the evidence establishes beyond a reasonable doubt that the defendant has, as here charged, stolen and killed' a heifer of unknown ownership, not his own, then it is not necessary for conviction that the people further prove that some specific animal has been stolen or identify the meat in defendant’s possession with that of some specific stolen animal. The applicability of the rule is demonstrated by the instant case. The information contained a first count charging larceny of a yearling alleged to be the property of a particular individual, and a second count charging larceny of the same yearling alleged to be the property of an owner unknown. Upon being required to elect, the District Attorney evidently thought the proof of ownership by the person named in the first count was insufficient and therefore stood on the second count. This eliminated any evidence by direct proof or brand or otherwise that any owner had lost any specific cattle, and properly he resorted to the rule that where the owner is unknown it is not necessary to prove the loss of any specific animal or the identity of the meat of the animal which defendant had taken and killed with that of any specific stolen animal. That this rule existed prior to the statute does not make either the statute or the instruction erroneous, and I believe the rule did
In conclusion, instruction No. 9, and the statute upon which it is based, so far as it pertains to proof that a specific animal has been lost and to proof of motive, are simply declaratory of the existing law, and the provision that it is not necessary for the people to prove intent is a constitutionally permissible declaration by the legislature that in the case of this statutory crime the establishment of the other necessary elements of the crime shall, in themselves, constitute presumptive evidence of intent.
I believe the judgment of the trial court should be affirmed.
I am authorized to state that Mr. Justice Jackson joins in this dissenting opinion.